Barnett v. Bd. etc., of Indep. Dist. of Earlham

• Decision Date: 25 October 1887
• Parties: BARNETT AND OTHERS v. BOARD, ETC., OF INDEPENDENT DIST. OF EARLHAM.
• Court: Iowa Supreme Court

73 Iowa 134

34 N.W. 780

BARNETT AND OTHERS

v.BOARD, ETC., OF INDEPENDENT DIST. OF EARLHAM.

Supreme Court of Iowa.

October 25, 1887.

Appeal from circuit court, Madison county; S. A. CALVERT, Judge.

Action of mandamus. The relief asked was refused, and the plaintiffs appeal.T. C. Gilpin, for appellants.

Wainwright & Goodale, for appellees.

SEEVERS, J.

Certain territory which geographically belongs to the district township of Penn was, by the concurrent action of the board of directors of said district, and the board of directors of the independent district of Earlham, attached to the latter for school purposes. This action was brought to obtain a restoration of said territory, and the facts are that two-thirds of the electors residing therein signed a petition, and united in asking such restoration. The prayer of the petition was granted by the board of directors of the township of Penn, but was refused by the board of directors of the independent district of Earlham. No appeal was taken to the county superintendent, and upon this ground the circuit court held that the mandamus would not lie. It is provided by statute that “any person aggrieved by any decision or order of the district board of directors * * * may * * * appeal therefrom to the county superintendent.” Code, § 1829. It will be observed that the statute seems to contemplate an appeal, only when the decision is made by the directors of a district township. The decision in this case was made by the board of directors of an independent district, and whether an appeal lies therefrom is not absolutely certain, but we shall assume it does, for the reason that counsel for the appellants does not claim otherwise, and seems to so concede. It is further provided by statute “that an order of mandamus shall not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law.”

This action was brought under section 1798 of the Code, which provides that territory situated like that in question shall be restored to the township to which it geographically belongs by the concurrent action of the boards of directors of the respective districts, in a case where two-thirds of the electors residing on such territory ask that such restoration be made. The statute seems to be peremptory. In this respect it is precisely like section 78, c. 172, Laws 1862. This last section does not, with entire clearness, express the intent of the general assembly; but we think...